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What if my property has covenants and there is an easement?

Posted by Gayla K. Austin | Nov 30, 2020 | 0 Comments

My property has covenants--do I still have an easement?

The Wyoming Supreme Court issued an opinion May 6, 2020 regarding the relationship between easements and covenants in a case called Gayhart, Trustee of the Gayhart Trust and Corsi.  

The reason this may be of interest to property owners with covenants is that the covenants did determine in this case the access for a property just outside the subdivision.  Ms. Gayhart owned property abutting to the subdivision.  The owner and developer of the subdivision granted an easement to her property through the subdivision.  However, at the time the owner granted the easement, the owner had, six years earlier, already sold all of the lots in the subdivision.   For that reason, and other reasons shown below, the Court found the easement to Ms. Gayhart was not valid.  

The case gives instruction on how covenants and easements impose restrictions or conditions on the use of land and this blog is a short discussion of that and how it might affect your property. 

The Court defined an easement as "an interest in land which entitles the easement holder to a limited use or enjoyment over another person's property".  The principles of contract construction apply to easement interpretation.  When determining the parameters of the easement, we determine the intent of the parties to the easement from its language.  If the language is clear we don't need outside evidence to determine the parties' intent.  If the language is ambiguous we look to outside evidence for intent. 

Similar rules apply when interpreting covenants. 

In this case, the covenants did define what easements include, and stated that "easement" included roads attached to and providing access to the lots in the subdivision.  

The Court defines the difference between "appurtenant" easements or "in gross" easements.  An easement is appurtenant to the land when the easement is created to benefit and does benefit the possessor of the land.  What is key is that an appurtenant easement is tied to the dominant estate, is conveyed with a conveyance of that estate, and cannot be conveyed independently.    

An easement in gross is an easement that is attached to an individual or entity rather than to the property.  

First, in this case, the easement is appurtenant because the easement was created to benefit a specific tract of land, the grant was for a perpetual right-of-way, the grantee has the right to inspect and maintain the easement, the right was not limited to the possessor personally, the grant extends to the rights of the grantees, and their heirs, and the easement document does not contain any limitations on the transferability of the easement.  

Second, the covenants did not contain any limitations on the transferability of the easement.  

As a general rule, covenants are appurtenant, meaning they run with the land, and covenants may also create easements.  In this case, the easement is appurtenant (runs with the land) and it is conveyed with the conveyance of the subdivision and cannot be conveyed independently.  

What this meant is that when the last lot of the subdivision was sold, the easement went with it.  The owner had no easement to convey six years later.  Not only that, because it was an appurtenant easement, it could not be conveyed independent of the subdivision. 

It is worth noting again that the reservation of the easement was defined in the covenants. 

And that is one way that covenants and easements work together to preserve to property owners access to their property. 

If you would like review of your property boundary, easements, homeowner's association declarations or covenants, I would be pleased to speak with you.  

Please contact me for a free consultation at 307.200.1914.  

Thank you. 

About the Author

Gayla K. Austin

I enjoy helping clients put it all together with legal advice regarding real property, estate planning and business entities.

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